Court of Appeals of Indiana | Memorandum Decision 19A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Megan K. Bolt Gibson Law Office Lafayette, Indiana A TTORNEY FOR A PPELLEE Myriam Serrano Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Kevin Sweat , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. May 22, 2020 Court of Appeals Ca se No. 19A

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- 3077 Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No s
. 79D02

- 1803

- F1

- 2 79D02

- 1811

- F4

- 41

Najam , Judge .Court of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 2 of 11 

### Statement of the Case

[1] Kevin Sweat appeals the trial court’s denial of his motion to withdraw his guilty plea and the sentence imposed by the court pursuant to his plea agreement. Sweat raises the following three issues for our review:

1. Whether the trial court abused its discretion when it denied his motion to withdraw his guilty plea.

2. Whether the trial court abused its discretion when it sentenced him.

3. Whether his sentence is inappropriate in light of the nature of the offenses and Sweat’s character.

[2] We affirm. 

### Facts and Procedural History

[3] In 2018, under two cause numbers, the State charged Sweat with thirteen felony offenses relating to his alleged molestations of his minor daughter, C .S. , and another minor child , R.S. In September of 2019, Sweat entered into a plea agreement with the State. Pursuant to that agreement, Sweat agreed to plead guilty in the two cause numbers to child molesting, as a Class A felony; c hild molesting, as a Class C felony; sexual misconduct with a minor, as a Level 4 felony; child seduction, as a Level 5 felony; and incest, as a Class B felony. The State agreed to dismiss the remaining charges . The agreement further provided that, while the sentences in the two different cause numbers would runCourt of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 3 of 11 consecutively, the aggregate total sentence imposed by the court “shall be forty to seventy (40

- 70) years.” Appellant’s App. Vol. 2 at 52.

[4] Prior to establishing a factual basis for his guilty pl ea at his ensuing change

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plea hearing, Sweat and his attorney engaged in the following conversation:
[ A ttorney] : The State (inaudible) and so (inaudible) is not going to be day for day because it’s credit restricted. (Inaudible) but because (inaudible ) it’s a mistake on my part that I had failed to tell you (inaudible).
[Sweat]: So what’s that mean?
[Attorney]: So, what that means, is we talked about how the A felony you’ll get, you would get credit for day for day. It won’t be day for day. It’s go nna be at a slower rate because it’s a Credit Restricted Felony because of the statute. And so, it’s not gonna be the day for day, it’s gonna be at a slower rate. I still think we go forward with it but

— [Sweat]: Is that gonna be a longer time?
[Attorne y]: No, I mean the length

. . . everything else will stay the same, the Plea Agreement will stay the same, it’s just , you remember me talking about credit time , and you earn credit time? The time (inaudible) in which you earn credit time, in that, on that A Felony, will be slower than day for day, and not day for day. Do you understand what I’m saying?
[Sweat]: I think so. It sounds like I’ll get more time.
[Attorney]: (Inaudible) right and so that the time with it which you earn credit time will be at a slower rate than day for day.Court of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 4 of 11 [Sweat]: Okay.
[Attorney]: Okay. Do you still want to go forward?
[Sweat]: Yeah.
[Attorney]: Okay.

Tr. at 16

- 17. Sweat then established a factual basis for his guilty plea . T he
court found that Sweat had entered into the plea agreement knowingly, “freely[,] and voluntarily” ; accepted the plea agreement ; entered its judgment of conviction; and set the matter for a sentencing hearing. Id. at 22

- 23

.

[5] More than two months later , Sweat filed a motion to withdraw his guilty plea. In that motion, he asserted in relevant part as follows: 5. Immediately prior to entering the guilty plea and establishing a factual basis, [Sweat’s attorney at the hearing] advised [Sweat] that credit time [for the Class A felony] would be “slower” than day for day. [Sweat] was still not advised specifically what credit time would be earned.
6. [Sweat] accepted the Plea Agreement because he relied on [his attorney ’s] representation that he could become eligible for release in ten (10) years.
7. [Sweat’s] belief that he would earn one day of credit for each day served was material to his decision to accept the Plea Agreement. [Sweat] would not have accepted the Plea Agreement if he had been properly advised that he would b e credit restricted.Court of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 5 of 11 Appellant’s App. Vol. 2 at 54

- 55.

[6] The court held a hearing on Sweat’s motion to withdraw his guilty plea, after which the court denied Sweat’s motion. In reaching that decision, the court stated that credit time is not “a material e lement in determining

. . . whether a person should plead because credit time is never guaranteed” but, rather, “is really an administrative issue” with the Department of Correction. Tr. at 35

- 36. The court also stated that Sweat’s attorney at the change

- of

- plea hearing corrected his initial advice to Sweat on credit time prior to Sweat agreeing that he wanted to continue to proceed with the plea agreement.

[7] After an ensuing sentencing hearing, the court sentenced Sweat to an aggregate
term of forty

- seven years, with eight years suspended to probation . In determining that sentence, the court found the following aggravating and mitigating circumstances : The Court finds as aggravating factors: the harm, injury, loss, or damage suffered by the victims is significant and greater than the elements necessary to prove the commission of the crime[s]; the impact the crimes ha [ve ] had on the families of the victims; the defendant committed the crime of violence and knowingly committed the offense in th e presence or within hearing of an individual who was less than 18 years of age; the overall seriousness of the offense[s]; the defendant was in a position of care, custody, and control of the victims; the defendant’s lack of empathy for his victims; the v ictim felt threat [ en ] ed to engage in the acts or that she couldn’t tell anyone about the offense.
The Court finds as mitigating factors: the defendant has no criminal history; the defendant plead[ed] guilty (diminished byCourt of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 6 of 11 the benefit he received from the plea agreement); the defendant has strong support from family and friends ; the defendant’s good work history; the defendant is willing to make restitution.
The Court further finds that the aggravating factors outweigh the mitigating factors.
Appellant ’ s Ap p. Vol. 2 at 64

- 65. This appeal ensued.


### Discussion and Decision Issue One: Motion to Withdraw Guilty Plea
[8] On appeal, Sweat first asserts that the trial court abused its discretion when it denied his motion to withdraw his guilty plea. As the Indiana Sup reme Court has explained: Indiana Code § 35

- 35

- 1

- 4(b) governs motions to withdraw guilty pleas. After a defendant pleads guilty but before a sentence is imposed, a defendant may motion to withdraw a plea of guilty. Id. The court must allow a defendant t o withdraw a guilty plea if “necessary to correct a manifest injustice.” Id.
By contrast, the court must deny the motion if withdrawal of the plea would “substantially prejudice[]” the State. Id. In all other cases, the court may grant the defendant ’ s m otion to withdraw a guilty plea “for any fair and just reason.” Id.

A trial court ’ s ruling on a motion to withdraw a guilty plea “arrives in this Court with a presumption in favor of the ruling.” Coomer v. State , 652 N.E.2d 60, 62 (Ind. 1995). We will r everse the trial court only for an abuse of discretion. Id. In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, we examine the statementsCourt of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 7 of 11 made by the defendant at his guilty plea hearing to decide whether his plea was offered “freely and knowingly.” Id.

Bri ghtman v. State , 758 N.E.2d 41, 44 (Ind. 2001) (footnotes omitted; alteration original to Brightman )

.
[9] Sweat asserts that he did not enter into his guilty plea knowingly because he was unaware of the precise contours of the credit time, if any, he might acc rue against his sentence. The record from the change

- of

- plea hearing makes clear that Sweat’s counsel at that hearing had initially misinformed Sweat regarding credit time, telling Sweat that he would earn day

- for

- day credit against his sentence. However , prior to proceeding with the plea agreement, this mistake was corrected

— Sweat’s counsel informed Sweat that he would not earn day

for

- day credit but would instead earn credit time at a “slower” rate as a credit

restricted felon. Tr. at 16

- 17. Sweat ack nowledged that he understood that he would have to actually serve “more time” as a result of his attorney’s clarification on credit time. Id. Nonetheless, when asked if he still wanted to proceed on the plea agreement with the corrected understanding on credit time , Sweat stated that he did.

[10] We are not persuaded that , had Sweat known the precise credit restriction, i.e., six days served for one day of credit, 1 that that would have mattered to his

1 As relevant to the Class A felony conviction on which Sweat’s status as a credit

- restricted felon is based, “[a] person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class IV,” and a person assigned to Class IV “earns one (1) day of creditCourt of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 8 of 11 decision to plead guilty. Sweat pleaded guilty knowing th at his credit time was going to be some measure slower than one

- for

- one, and he was not so concerned about the precise rate of accrual that he wanted to inquire further before continuing with his plea agreement. Indeed, a s the trial court noted when it de nied Sweat’s motion to withdraw his guilty plea, there is no guarantee that any credit time will actually accrue against a defendant’s
sentence once he begins his incarceration. In other words, Sweat received the full benefit of his bargain. Accordingly, we cannot say that the trial court abused its discretion when it denied Sweat’s motion to withdraw his guilty plea.



### Issue Two: Whether the Trial Court Abused its Discretion in Sentencing Sweat
[11] Sweat next asserts that the trial court found and considered improper aggravators when it sentenced him. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Gross v. State , 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied

.
[12] A trial court abuses its discretion in sentencing if it does any of the following:

time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.” I.C. §§ 35

- 50

- 6

- 3(d),

- 4(b) ( V ersion a 2013 )Court of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 9 of 11 (1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a se ntence

— including a finding of aggravating and mitigating factors if any

— but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) con siders reasons that “are improper as a matter of law.”

Id. (quoting Anglemyer v. State , 868 N.E.2d 482, 490

- 91 (Ind.), clarified on reh ’ g on other grounds , 875 N.E.2d 218 (Ind. 2007)).

[13] According to Sweat, the trial court first abused its discretion when it found Sweat’s “lack of empathy” to be an aggravator. Appellant’s Br. at 14. Sweat asserts that he demonstrated proper remorse at the sentencing hearing. But we conclude that Sweat’s argument on this factor is merely a requ est for this court to reweigh the evidence and reassess his credibility, which we will not do.

[14] Sweat next asserts that the court erred when it found that one of the offenses was committed in the presence of another minor and that one of the victims felt th reatened during the commission of one or more of the offenses

. But those findings are readily supported by the State’s exhibits at sentencing, namely, the police reports from the two victims . T he trial court was not required “to turn a blind eye to the f acts” that brought Sweat before it as demonstrated by those exhibits

. Bethea v. State , 983 N.E.2d 1134, 1145 (Ind. 2013).

[15] Last, Sweat asserts that the trial court erred when it found his position of trust over C.S. to be an aggravating factor because his status as her father was a necessary element to his conviction for incest. But Sweat is not correct. HisCourt of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 10 of 11 position of trust was not a biological condition, and we have rejected this argument before

. See Grimes v. State , 84 N.E.3d 635, 644 (Ind. Ct. App. 2017), trans. denied . The trial court did not abuse its discretion when it sentenced Sweat. 

### Issue Three: Indiana Appellate Rule 7(B)
[16] Sweat’s final argument on appeal is that his forty

- seven - year sentence, with eight years suspended to probation, for five felony convictions relating to child molesting is inappropriate in light of the nature of the offenses and his character. But Sweat’s argument on this issue is premised on his belief that the sentence imposed is erroneous “in light of the improper aggrav ators” he identified in Issue Two. Appellant’s Br. at 17. As he summarizes his one

paragraph argument on this issue, “[h]ad the court not found and considered multiple improper aggravators with significant weight,” Sweat may have received a different sen tence. Id. at 18.

[17] An argument under Indiana Appellate Rule 7(B) requires the appellant to show that the sentence imposed is inappropriate in light of the nature of offenses and his character. E.g. , Sorenson v. State , 133 N.E.3d 717, 729 (Ind. Ct. App. 20 19), trans. denied

. Sweat makes no such argument under Appellate Rule 7(B). Accordingly, his argument on this issue is waived. See Ind. Appellate Rule 46(A)(8)(a).

[18] Moreover, as we reject Sweat’s assertion that the trial court found improper aggravators, as explained in Issue Two, we reject his argument that his sentenceCourt of Appeals of Indiana | Memorandum Decision 19A

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- 3077 | May 22, 2020 Page 11 of 11 is inappropriate in light of those aggravators. And Sweat’s remaining assertions on this issue are not sufficient to carry his burden of demonstrating appellate relief under Appellate Ru le 7(B). Sweat pleaded guilty to five felonies relating to the molestation of his daughter and another minor, established a clear factual basis for those offenses, agreed to be sentenced within a range of forty to seventy years, and actually received a se ntence of forty

- seven years with eight years suspended. We affirm his sentence.

[19] Affirmed.

Kirsch, J., and Brown, J., concur

.